Justice Watch: The Alliance for Justice Blog

June 2011

In 2009, U.S. Attorney General Eric Holder directed special prosecutor John Durham to investigate the interrogations of certain detainees, alleged to have been tortured, and to determine whether federal law may have been broken. Durham has been actively investigating these cases – some of which were fatal. Attorney General Holder today announced that a full criminal investigation will be launched into two of those cases, both of which resulted in the death of the detainee. The remaining 99 instances of alleged abuse will be dropped from Durham’s ongoing investigation.

According to Attorney General Holder’s statement:

Mr. Durham has advised me of the results of his investigation, and I have accepted his recommendation to conduct a full criminal investigation regarding the death in custody of two individuals. Those investigations are ongoing. The Department has determined that an expanded criminal investigation of the remaining matters is not warranted.

While AFJ applauds the fact that two of the incidents will be criminally investigated, we continue to believe that accountability must go to the highest levels and include those who crafted the Bush Administration’s torture policy – including the lawyers who twisted the law to justify torture as an acceptable tactic in the so-called war on terror. AFJ has long believed that accountability for torture is necessary to ensure that these gross human rights abuses do not happen again and to restore our country’s reputation as a nation of laws. The AFJ film Tortured Law explores the role government lawyers played in authorizing torture, and calls for a full-scale investigation of those who ordered and justified torture.

President Obama has nominatedJudge David Ogden Nuffer to the United States District Court for the District of Utah, and Thomas Owen Rice to the United States District Court for the Eastern District of Washington.

Judge Nuffer is a United States Magistrate Judge for the District of Utah, a position he has held on a full-time basis since 2003 and held on a part-time basis from 1995 to 2003. Mr. Rice is an Assistant United States Attorney for the Eastern District of Washington, a position he has held since 1987. The seat to which Judge Nuffer has been nominated is considered to be a judicial emergency by the Administrative Office of the U.S. Courts.

Among the witnesses was Betty Dukes of Pittsburg, CA, a seventeen year veteran employee of Wal-Mart and lead plaintiff in the gender discrimination case broken up by the Court last week. Dukes remains upbeat in her hope that, even without the ability to fight Wal-Mart as a unified class, women subjected to the retail giant’s discriminatory culture and practices will one day obtain justice. However, she testified that many women will give up because it’s too hard to fight the company alone, and especially difficult to fight one’s own employer.

Professor Melissa Hart of the University of Colorado Law School testified to the common threads between the Wal-Mart and AT&T decisions. In both cases, the same five-vote majority of the Supreme Court interpreted procedural rules in ways completely different from their original meaning and with hostility to the class action device. As a result, no court has reached or will be likely to reach the substance of the claims made in those cases. Questioned by Senator Franken, Professor Hart stated that the Court’s interpretation of the Federal Arbitration Act of 1925 was inconsistent with its legislative history and purpose, and that allowing corporations to write class action bans into fine print contracts incentivizes small-dollar rip-offs of hundreds of thousands of hard working people. Franken has introduced the Arbitration Fairness Act in response to AT&T, which would amend the FAA and limit binding mandatory arbitration.

Senator Franken also took to task witness Andrew Pincus, the attorney who represented AT&T before the Supreme Court. Pincus, a partner at corporate defense giant Mayer Brown LLP, wrote in the New York Times and suggested in his opening statement that only plaintiffs’ attorneys looking to rack up huge fees would be hurt by the Court’s ruling. Franken noted that the average partner at Mayer Brown is paid over $1 million per year; Pincus, he said, is in no position to criticize others for a possible financial interest in the workings of the legal system.

Professor James Cox of Duke University School of Law testified on the likely fallout in the financial industry from the Court’s decision in Janus. The narrow and inapt definition adopted by the Court of who can “make” a false or misleading statement will greatly restrict the power of investors to recover damages and enforce anti-fraud laws. Only the Securities Exchange Commission will be able to go after many offenders, and even then there may now be loopholes. But the SEC, Cox explained, has only investigated, much less taken enforcement action, in 17% of resolved securities fraud cases, and it has been hesitant to take action against the biggest Wall Street firms. Connecting back to Wal-Mart, Senator Franken observed that the Equal Employment Opportunity Commission, the government body charged with pursuing workplace discrimination claims and to which many of Dukes’s colleagues may now have to turn, has a backlog of 80,000 claims to hear.

Senator Whitehouse observed that the procedural hurdles, arcane rules, and cramped statutory interpretations that characterize recent Supreme Court decisions might be summed up in two words: “corporation wins.” In closing, he extolled the role of jury in our constitutional design, and lamented the Court’s “steady addition of trouble, toils, and snares” between everyday Americans and their right to have their cases heard by their peers.

This morning, by a vote of 79-20, the Senate passed S. 679, the Presidential Appointment Efficiency and Streamlining Act of 2011, a measure that will significantly reduce the number of executive positions subject to Senate confirmation.

Specifically, a third of the current Senate confirmable positions—all minor posts—will now either not require confirmation at all or enjoy a streamlined confirmation process. Senators Charles Schumer (D-NY), Lamar Alexander (R-TN), Joe Lieberman (I-CT), and Olympia Snowe (R-ME) deserve praise for championing the legislation, which will help ease the backlog of nominations and free up senators’ time to focus on other important legislative business.

Member Spotlight

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